NEWS FROM THE COURTS

Mansour v. INS, Seventh Circuit

In this case, the court reversed the decision of the Board of Immigration Appeals rejecting a claim under the United Nations Convention Against Torture.

Samer Mansour, a native of Iraq, sought asylum in the US, claiming that he was persecuted on the basis of his religion, Christianity, and because of his desertion from the Iraqi army during the Gulf War.  He claimed that while in college in the early 1980s, unlike his classmates, he was required to serve in the army during the Iran-Iraq war.  Following an injury, he deserted, but rejoined a few months later because national security forces were harassing his father.  He tried to leave Iraq in 1989, but conditions made it difficult to obtain a passport.  While he was waiting for one, he was drafted into the Iraqi army.  He again, this time with his entire unit, deserted, and went into hiding in Baghdad.  In 1992 he moved his parents to Jordan but he remained in Iraq.  In 1995 he left the country, seeking asylum in the US.

The Immigration Judge who heard Mansour’s claim found that he was not credible.  During his testimony before the IJ, he denied having been arrested and beaten by the Iraqi secret police, a claim he made in the asylum application.  This, plus the fact that between 1992 and 1995 he came and left Iraq numerous times without incident led the IJ to conclude that he was not credible.  He appealed to the Board of Immigration Appeals, and also filed a motion to reopen under the UN Convention Against Torture (CAT).  The Board agreed with the IJ’s adverse credibility determination, and denied the motion to reopen, finding that Mansour had failed to establish a prima facie case under the Convention.

The Seventh Circuit agreed with the BIA’s disposition of the credibility issue, but disagreed on the CAT claim.  The Board denied the motion to reopen because of the adverse credibility determination.  The Seventh Circuit found that this was not sufficient, because the CAT claim is separate from the asylum claim.  The court found two things that made it doubt whether the BIA had examined the CAT claim.  First, it referred to Mansour as a Syrian Christian, when he is in fact an Assyrian Christian.  Second, it did not address the State Department country condition report on Iraq, which deals with Iraqi government abuses of Assyrian Christians.  While allowing that the Board could have merely made a misstatement, the court felt that this was too critical an area to forego further proceedings.  There was no way for the court to determine whether the Board had actually examined the CAT claim, or merely brushed it aside after rejecting the asylum application.  Therefore, the court remanded the case for more hearings on the CAT claim.

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-moses/getcase.pl?court=7th&navby=case&no=993940.

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Sandoval-Rubio v. INS, Ninth Circuit

In this case, the court ordered deportation proceedings terminated because the INS’s evidence was gained through an unconstitutional search.

Martin Sandoval-Rubio, a citizen of Mexico, was ordered deported for being in the US without authorization.  The Board of Immigration Appeals upheld the order, and Sandoval-Rubio appealed to the Ninth Circuit.  He claimed that the evidence that he was unlawfully in the US should have been suppressed because it was the fruit of an unconstitutional search.  From the beginning of proceedings, the INS admitted that Sandoval-Rubio was stopped because of his Hispanic appearance and because he was leaving a farm known to employ aliens, both documented and undocumented.

Conducting a search solely on the basis of the ethnic background of the person searched is unconstitutional.  The Ninth Circuit has long used this rule to prevent the introduction of evidence in deportation proceedings when the evidence that the person is in the US without authorization was gathered at such an illegal search.  The Ninth Circuit found that the evidence should not have been introduced, and ordered the deportation proceedings terminated.

The opinion is not available online.

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Hussain v. INS, Ninth Circuit

In this case, the court reversed the finding of the Board of Immigration Appeals that Hussain was not eligible for asylum.

Syed Zahid Hussain, a native of India and citizen of Pakistan, sought asylum in the US, claiming that he was persecuted on the basis of his political opinion.  He was a journalist with 20 years experience with relatively independent newspapers in Pakistan.  In 1989, during his time with one such paper, a large group of members of the Mohajir Quami Movement attacked the paper’s building with rocks and called for the death of the paper.  Later that year, the owner of the paper was kidnapped and released only after he promised to publish pro-MQM news in the paper.  Shortly thereafter, the paper stopped publication.

Hussain then took a position with a different paper where he was an editor.  While he was there, members of a political group opposed to the MQM, the Punjabi Pakhpoon Intihad, attacked him at the office and threatened to kill him if he did not stop publishing news about an MQM leader.  He was released only after his captors met with the paper’s editor in chief who agreed to publish news about the PPI.  Three months after this incident, Hussain entered the US and sought asylum.

The Immigration Judge who heard Hussain’s case found that he was not credible, and that he had failed to establish his eligibility for asylum.  The Board of Immigration Appeals affirmed, finding that he was not persecuted, that he did not face persecution on the basis of political opinion, and that journalists are not a particular social group, but did not address the issue of credibility.  Hussain appealed to the Ninth Circuit.

The Ninth Circuit found that Hussain was persecuted, and that it was on the basis of an imputed political opinion.  According to Hussain, members of the PPI attacked him because they believed he was sympathetic to the MQM cause.  The Ninth Circuit found this claim bolstered by the fact that Hussain was released when the paper agreed to publish pro-PPI pieces.  The Ninth Circuit also found that journalism is work that overtly manifests a political opinion.  While Hussain may have been maintaining journalistic independence, it was clear the PPI believed he held a pro-MQM political opinion.  The PPI may have been trying to generate publicity, but the fact remains that they persecuted Hussain on the basis of an imputed political opinion.  Because he established that he was persecuted, he is entitled to a presumption of a well-founded fear of future persecution.  The INS did not rebut this presumption.

Because the BIA did not address Hussain’s credibility, the Ninth Circuit remanded for a hearing on that issue.

The opinion is not available online.

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Martirosyan v. INS, Ninth Circuit

In this case, the court reversed the finding of the Immigration Judge that the applicant was not eligible for asylum.

Mesrop Martirosyan, a native of Armenia, sought asylum in the US claiming he feared persecution based on his refusal to serve in the Armenian Army, where he claimed he would be required to commit inhumane acts against prisoners of war.  In 1984, at age 17, Martirosyan began attending a Soviet military college.  In 1988, following his graduation, he was sent to Kazakhstan where he was a psychological counselor for soldiers returning from the war with Afghanistan.  A large part of his duties was “retraining” soldiers in Communist philosophy.  This work led him to become disillusioned with the Soviet Union, and he began expressing anti-Communist ideas openly.  He was transferred to a remote position, and after a year was fired. 

He returned to Armenia, which was beginning its war with neighboring Azerbaijan.  He joined a group opposed to the atrocities that were being committed by both sides in the war.  One of the activities to which this group was most opposed was the treatment of prisoners of war, who were being tortured and murdered.  In 1993 he was drafted into the Armenian Army and told that because of his previous experience, he would be sent to a POW camp to “retrain” the prisoners.  Martirosyan refused, saying that he would work as a regular soldier, but did not want to work in the POW camps.  Following his refusal, his family began receiving threats, and was cut off of social services.  Martirosyan could not get a job, and fled to Moscow.  A year later his family was still being threatened, and the former Soviet republics signed an agreement to return deserters to their home country for prosecution.  This made Martirosyan feel he was no longer safe in Moscow, and he fled to the US.

The Immigration Judge who heard his case found that while he was credible, and corroborated his testimony with documentary evidence, his claim that he would be required to commit inhumane acts in the POW camp was speculative.  The Board of Immigration Appeals affirmed.  Martirosyan appealed to the Ninth Circuit.

Generally refusal to perform compulsory military service is not a basis for an asylum claim.  However, it is accepted that there are circumstances in which refusal to serve because such service would require the commission of inhuman acts can form the basis for asylum.  The Ninth Circuit found that the Immigration Judge had no basis for its conclusion that Martirosyan’s fear of persecution was speculative, and that documentary evidence he submitted supported his claim to have a well-founded fear of persecution.  The Immigration Judge, according to the Ninth Circuit, erred in requiring Martirosyan to produce documentation of atrocities committed at the POW camps.  Simply because Martirosyan had not yet been ordered to commit an atrocity was, for the court, not a reason to deny asylum.  Therefore, the court remanded the case with instructions to grant asylum.

The opinion is available online at http://laws.findlaw.com/9th/9870979.html.

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